Your Lordship, Sir
At stake is dignity of the Court
By H K Dua
Mr Deputy Chairman, Sir,
H K Dua (Nominated): Mr Deputy Chairman, Sir, I move that the
Bill to amend the Constitution of India – Article 124 (7) -– be taken into consideration.
Sir, I had introduced this Bill nearly two years ago in the House. Now I consider myself lucky it has found a place in the ballot and the Bill is before this House for consideration. It deals with a matter of high importance of public policy and it also has a bearing on the credibility and independence of the highest court of the land.
Sir, during the last 67 years, important institutions of the State — Parliament, Judiciary and Executive – have seen a decline in their working, functioning and the values. I am not going into the working of Parliament and the Executive in this Bill. My Bill focuses only on the working of the Judiciary at the highest level. The working of the Judiciary has become a subject of considerable conversation among the common people.
The Minister of Law and Justice (Shri Ravi Shankar Prasad): Sir, may I make one request? Certainly, this Bill has been moved, but while debating on the Judiciary, a degree of restraint needed should be maintained. That is the only request I am making to the House.
Mr Deputy Chairman: That is quite correct. Self-restraint is needed.
H K Dua: Certainly, Sir. No names will be given and restraint will be exercised. I am very conscious of this factor which the Law Minister has mentioned, and I am glad that he has reminded us all of this. Personally,ouse for consideration. It deals with a matter of high importance of public policy and it also has a bearing on the credibility and independence o the highest court of the land, I always believe in keeping the dignity and independence of the Judiciary in view in whatever I say or write about it. My speech will be brief and to the point.
Sir, this Bill is focussed on only the working of the Judiciary and it is sad that the it should become the subject of conversations among the people at different levels. The reason being that the functioning of the lower courts is really bad and people are feeling disillusioned with their working. The High Courts also, during the last few years, are coming up for adverse comments. Arrears are piling up by the day. Justice is being delayed and denied. The quality of justice is suffering and the redress is not available. The last hope for the people is the kachehri – the Supreme Court of India. This Bill focuses on one aspect of the Supreme Court’s functioning – not on the wider reforms in the functioning of the Supreme Court, which people talk about: say, appointments of judges, judicial accountability, the functioning of the Collegium, etc. I am not going into all that.
This Bill is meant for only amending Article 124, clause 7 which forbids retired judges of the Supreme Court, including Chief Justices, from doing chamber practice, giving opinions in private after their retirement and indulging liberally in arbitrations where big companies of the corporate sector are involved. Now should they take up such assignments or not? Clause 7 of Article 124 forbids it. This clause is being violated or, to put a better word, conveniently ignored by retired judges of the Supreme Court, including some retired Chief Justices. They are liberally doling out opinions in their chambers. They are taking up arbitration cases and offering their opinions and awards. Hearings are held in Geneva, or London, or New York or Tokyo or wherever it is convenient for them, at a high cost. Personally, I believe the Supreme Court Judges should not take up these assignments. Clause 7 forbids it. But they are deliberately ignoring the spirit and the letter of clause 7 of Article 124.
Why are they ignoring it? Once upon a time, they were very eminent lawyers who became High Court Judges and then came to the Supreme Court, which is the Apex Court of the country. The highest honour, which the country can give to a judge, is to make him a member of the Supreme Court bench. Should that kind of dignified status in the country’s constitutional scheme of things be allowed to go down in public esteem by the judges doing legal practice for earning money, the kind of money which, apparently, they would not get while serving on the Bench. By choosing to dole out opinions in arbitration cases, where both the companies have to give the fee, their incomes go up and they earn much more than what they would have got through their salaries or retirement benefits while in service. Not only is the spirit of clause 7 of Article 124 being violated, but essentially what is forbidden by law is amply being practised openly.
Maybe, the forbidden fruit is always sweeter and they are enjoying the fruits of retirement. Who suffers? It is the prestige of the Supreme Court that suffers – the prestige of the highest Court of the land! The last hope of people to seek justice is the Supreme Court. If the prestige and the credibility of the Supreme Court suffer, the country suffers and the loss of credibility leads to loss of respect of the people and if people lose respect of the highest court of the land, then, its independence can also suffer in a way. I would like clause 7 to be amended and made more tighter so that in future judges and Chief Justices of the Supreme Court do not take up post retirement engagement with dispensation of chamber justice. I would read Article 124……
Deputy Chairman: Duaji, what is the harm in using their experience and expertise by the Government? What is wrong in that?
H K Dua: I will give a remedy for it. Article 124(7), Mr Deputy Chairman, reads: “No person who has held office as a judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.” This prohibition is very clear. There is no ambiguity about it. Also it is well settled principle of law that anything which is forbidden to be done directly cannot be done indirectly. The judges of the Supreme Court and some of the former chief justices are doing what is forbidden. I am not giving their names. The names are known to the people and it is not proper to give their names when they are not present in the House. I would simply like this clause to be amended. The amended clause 7 would read:
“No person who has held office as a judge of the Supreme Court shall plead or act or express written opinion or engage in arbitration in any court or before any authority within the territory of India and outside India provided that he may do so upon a request made by the President or the Prime Minister of India or the Governor or the Chief Minister of a State in a matter of national importance.” Supposing an inquiry commission has to be appointed or a retired Supreme Court judge is needed for appointment as Chairman of the Human Rights Commission, that is the matter of the State and is of the highest public importance. Those kinds of assignments are valid, but doing private chamber practice or arbitrations is forbidden and should not be taken up or by the judges.
Mr Deputy Chairman, Sir, way back in 2004, a former Attorney General, Mr Soli Sorabjee, expressed grave concern at a former chief justice of India filing affidavits on behalf of the private litigants in the US Court.
I am sure the Law Minister knows the name of the former Chief Justice. . I don’t have to mention the name of the judge in this House. There are several other instances impinging upon the credibility of the institution on which lies the greatest responsibility for preserving the Constitution.
A former Chief Justice of India—one of the more respected Chief Justices who is no more now – none else than Justice J S Verma — even wrote a letter to the then Prime Minister in 2005. I will quote from the letter.
Quote “A related issue assuming significance in recent years must also be addressed. There is public disquiet voiced often in private about some post-retirement engagements of the Supreme Court judges and Chief Justices. Chamber practice in the form of written opinions, under signature, given for use in any court, tribunal or authority and paid arbitration work done while heading a commission, availing the benefits and perquisites or salary of a sitting judges are some of the disturbing trends. It is a serious issue relating to judicial accountability requiring clarification without further delay. It is time that Article 124(7) is made more specific to remove any ambiguities or grey areas amenable to different individual interpretations in respect of prohibited activities after retirement from the Supreme Court.” (Unquote)
Never after his retirement, Chief Justice Verma gave an opinion or took up any arbitration. Justice M N Venktachaliah, and several other distinguished judges, before the 1980s never gave private opinions. But these days, the spirit and letter of Article 124 are being violated very extensively.
Through the amendment of clause 7, I would recommend to this august House to remove the grey area to ensure that the judges do not take up private practice.
Certainly, they will lose income. It is indeed high income. I don’t know whether they can spend that kind of money in their life time; they cannot. But they should be compensated for it. We should not be unfair to the judges, and I would suggest the Law Minister should come forward with a Bill to enhance the judges’ retirement age. At the moment, the Supreme Court Judges retire at the age of 65. It can be raised up to 70. Give them five years more. So, the time they are spending and the effort they are spending in dispensing justice outside…..
The Vice-Chairman (Shri V P Singh Badnore): Like as long as the politicians!
H K Dua: Yes, that is right, Sir. But for that, I think, another discussion would be needed, Sir, including for the media, you might add!
So, we give them five years extra, and the hard work they are doing in dispensing justice in their chambers after retirement should be done for the country, and the Supreme Court itself. The Supreme Court will continue to have the benefit of their background, prestige and experience in the dispensation of justice. Let them have five years more. If the Law minister brings forward a Bill for this purpose – I have not included the superannuation clause in my amendment – I am sure, this House and the Parliament , the other House also, will support it. That will be a much better way. Also, their post-retirement perks can be improved so that there should not be any temptation to go in for any extra curricular practice. Their families should not suffer either because of the loss of income.
However, no salary given by the Government or perks given by the State can match the kind of incomes they get from arbitrations. These judges, however, should have known while taking up the judgeship of the Supreme Court – that the most prestigious posts which a person can reach in judiciary —– cannot give them the income which the corporate sector can give outside. But the demands of holding a prestigious post certainly presume that there will be limitations which the judges have to accept before taking up the prestigious, challenging and most respectable office at the Court.
Sir, I will repeat I have a great respect for the Judiciary. I have always supported the judiciary as a newsman, I have always supported, as an Editor, the judiciary’s independence. There have been major controversies when its independence was sought to be throttled but several journalists, including me, did stand up for the Supreme Court and its independence.
Another reason I respect the Supreme Court’s independence is that it has always supported the Freedom of the Press, the Right to free expression. Also, it has supported Fundamental Rights, except during the Emergency when it failed the common man. Even the Right to Life was simply given away. But the Chief Justice concerned later on said it was a mistake. Second thoughts are also important if they are helping the people. Essentially, I have respect for the Supreme Court. If I have moved this amendment, it is because I would like the Supreme Court to retain the kind of prestige it has enjoyed. It should not go down in the people’s eye. I hope this House will support my amendment. I am sure the Law Minister will also support my Bill.
I may also take this opportunity to point out Mr Vice-Chairman, that nearly two years ago I had brought another Constitution (Amendment) Bill….
The Vice-Chairman (Shri V.P. Singh Badnore): How long will you take?
H K Dua: Just one minute more – may be two. This is just an addition since I have got this opportunity for the first time …(interruptions)…..
The Vice-Chairman (Shri V P Singh Badnore): But you have got a lot of supporters. I do not know if they are going to be your supporters or not, but there is a long list of speakers.
H K Dua: I will take one minute more …..(interruptions)…. I would have met the new Law Minister otherwise also. But this is for the first time I have got a chance to speak when Mr Ravi Shankar Prasad is the Law Minister. He may remember that his response was positive and when I brought an amendment to prevent the misuse of resignation sent to the President by an High Court Judge who was sought to be removed by a motion in this House after the Judge had appeared before the House. It was Mr Soumitra Sen’s impeachment motion. But the House was unanimous that he should be removed. It unanimously passed the motion. Before it went to the Lok Sabha, he resigned. Thus the entire process of removal envisaged in the Constitution was frustrated by a slip of paper called resignation. He wrote his resignation and sent it to the President. Under the Constitution the President does not have to formally accept the resignation. The Constitution is very clear about it. So, I moved the amendment that so long as a Judge is sought to be removed, and removal proceedings are on in Parliament, including its inquiry instituted by Parliament, his or her resignation should be formally approved by the President and only then he can be relieved. No President will let an errant Judge run away from the process of justice.
I would like the Law Minister to look at the proceedings of that debate when my Bill was discussed two years ago. An assurance was given by the government at that time that they will bring forward a Bill, whether it is Constitution amendment or otherwise. I don’t think there is a way out but to go in for an amendment to the Constitution, but they said they would come forward with a remedy for the lacunae in the Constitution I had pointed out. They accepted my suggestion in principle. I do not know whether this Government would live up to the assurance of the previous Government, but I know Mr Ravi Shankar Prasad’s views at that time. “A very good Bill you have brought forward,” he had said. Sir, I am taking this opportunity to plead with him that he should accept that amendment also.
Thank you very much, all the members and I hope the House will accept my present amendment of Article 124, clause 7.
Thank you, Mr Vice-Chairman for being patient with me.
(ends)e was supportive and outside he told me, ‘’”
Mr H K Dua’s Reply to the Debate that lasted nearly two hours.
The Vice-Chairman (Shri V P Singh Badnore): Thank you very much, Mr Dua. You will have to reply because the Minister does not reply to this. You have to reply.
H K Dua: Certainly, Mr Vice-Chairman. I am very thankful and almost overwhelmed with the response of the Members from all sides, from the people on the right, the left and in the middle and behind me have supported the Bill which I moved. In fact, they have extended the debate to many, many related issues concerning the judiciary. I am really overwhelmed and thank all the speakers. I was heartened at the spirited reply the Law Minister has given on the questions raised in the House, giving an idea of what kind of judicial reforms he has in mind.
And on a vast number of issues he has listed, which seem to be on the high on his agenda, which he wants to tackle. In fact, within just a few days of the new Government taking over, he has listed the subjects which are on the top of his table and going to get attention.
It is heartening to know that he has already written four letters to the Chief Justice. In one letter he has requested the CJI to fill the vacant posts of judges. If all these posts are filled, then, the dispensation of justice in the country will become fast and some of the arrears would be cleared and people’s faith possibly will be restored. There are 4,000 posts vacant in subordinate courts and 200 in the High Courts, I am sure when he is at it, he will be able to fill these vacancies. Sir, 4000 vacancies in subordinate courts is a vast number. If these are filled, then 2.6 crore cases will certainly come down fast.
That he is mulling over other issues such as judicial accountability and appointment of judges and wants to hold wider consultations, in the House and outside with the Judiciary also, is encouraging. He has always maintained, and again he has reiterated today his Government’s faith in the independence of the Judiciary. Nobody in this House wants to do anything which may cut into independence of the Judiciary by even an iota.
About arbitration, he wants India to be the hub of arbitration. I can well understand why this alternative settlement of disputes is being preferred all over the world, and why not in India, where courts are overloaded with the work. Justice should be speedier; possibly, cheaper also.
I did not know about the Arbitration Bill he has spoken about it and is still pending. I would like that since the Minister is going to review that Bill he should see how contemporary it is, whether it meets all the concerns; that needs to be examined. He should see whether he can provide guidelines for the arbitration process. Because this is outside the court, you can’t lay down the laws for this. But you can regulate it. And, if there are some guidelines which can meet most concerns about arbitration process, I think, that will be helpful. Another look at the Arbitration Bill will be helpful.
However, the point which I was making is that the Supreme Court judges and the Chief Justices are doing arbitration cases. There, the problem remains. I think this question needs to be looked into when you examine the arbitration laws. The question is about the high fees which the arbitrators get from the corporate sector, from both the parties, and sometimes arbitration hearings are held abroad. Well, in the globalised world, that can’t be avoided. But, sometimes, for holiday purposes, arbitration proceedings are held abroad. There are so many instances, which are, frankly speaking, not noble, which go with the arbitration process. I don’t want to list those, but some guidelines, I thought, should be provided when the Law Minister examines the question.
But on the whole, the Law Minister has been positive about the judicial reforms, and if this debate has focussed and crystallized some issues before the House, I am very happy about it. It is good that the Law Minister is seized of these issues. In view of his assurances, I won’t press my Amendment Bill.
The Vice-Chairman (Shri V P Singh Badnore): Does the Hon. Minister want to say something more on to it?
Shri Ravi Shankar Prasad: Earlier I was in the opposition, Sir. Now as a Minister it is my new responsibility; I need to have a look at the earlier Bill. (The one about the judges who frustrate the removal process). I will surely look into it and revert.
H K Dua: His response to the earlier Bill than was very encouraging and he supported the Bill outside and he was indeed in the Opposition then.
The Vice-Chairman Shri V P Singh Badnore): I must say that we have had a very nice discussion on the Constitution Amendment Bill moved by Mr Dua. Mr Dua, are you withdrawing the Bill?
H K Dua: Sir, I withdraw the Bill.
The Bill was, by leave, withdrawn.